Owosho V. Dada (1984)

ANIAGOLU, J.S.C.

This is an appeal brought by one of the land owning families of Lagos, namely, the Bashua Family, in a case in which the respondent, Michael Adebowale Dada, took out an action in the Ikeja Judicial Division of the High Court of Lagos claiming for

“An order to set aside and declare null and void the purported deed of conveyance between Chief Sanusi A Bashua, S. A Eshubi, N.A. Kekere-Ekun Abu Amore, M. Adisa Bashua, R.A. Adewale (for themselves and on behalf of the Bashua Chieftaincy family of Lagos) and T. Lawal Owosho made the 16th day of March 1973 and registered as No. 69 at page 69 in volume 1433 of the Register of Deeds kept at the Lands Registry Lagos in respect of a landed property situate, lying and known as No. 13, Obiwunmi Street, Bashua Village, Shomolu in the Ikeja Division of Lagos State of Nigeria on the ground that it was made executed and obtained fraudulently and/or in an attempt to defeat the end of justice.”

Pleadings were ordered and filed. Perhaps the plaintiff’s grievance leading to the action will be brought out more clearly by reproducing his statement of claim as follows:

“Statement of Claim

1. The plaintiff is a Nigerian residing at No.5, Folami Street, Shomolu and carries on business as an estate agent and building contractor.
2. The 1st, 2nd, 3rd, 4th, 5th and 6th defendants are the accredited representatives of Bashua Chieftaincy family and are sued for and on behalf of themselves and other members of Bashua Chieftaincy family.
3. The 7th defendant is a trader and lives at No. 12, Obiwunmi Street, Bashua Village, Shomolu.
4. The defendant family is the owner under native customary law of the vast area of landed properties at Bashua Village, Shomolu which were sold/or leased to buyers and/or leased as building plots in accordance with an Approved Elias Layout in respect of the same vast area of landed property.
5. The plaintiff, for about 5 years since 1966 acted as estate agent and building contractor for the defendant family in respect of the vast area of landed property at Bashua Village Shomolu.
6. Through the plaintiff as estate agent and building contractor the defendant sold several building plots to clients including Mr. Olayinka of 48, Freeman Street, Ebute-Metta, Alhaji Sanni of Reclamation Road, Lagos, Mr. Lawal Owosho of Nos. 10 and 12 Obiwunmi Street, Bashua Village, Shomolu, Mr. Ogunshola of No.1, Opere Street, Bashua Village, Shomolu.
7. The landed property on which the plaintiff built his house at No.5, Folami Street, Shomolu was formerly leased to the plaintiff by the defendant family in 1966 at a price of 150 pounds but receipt was issued for only 80 pounds according to their usual practice, the balance being regarded as money for “Ijoko Agba”.
8. The 1st, 2nd, 3rd, 4th, 5th and 6th defendants are the accredited representatives of Bashua Chieftaincy family and are the Signatories to the deed of conveyance dated 26th day of June, 1971 and registered as No.13 at page 13 in Volume 1361 in the Register of Deeds kept in the office at Lagos relating to the landed property at No.5, Folami Street, Shomolu.
9. Sometime in May, 1970 the defendant family agreed to lease and did lease to the plaintiff a piece of landed property at No. 13, Obiwunmi Street; Bashua Village, Shomolu for a period of ninety-nine (99) years on payment of a premium rent of 260 pounds (Five Hundred and Twenty Naira) but receipt was later issued for only 60 pounds on the 19th day of June, 1970 and on an annual rent of 5 pounds (now N10).
10. Chief Sanusi Bashua the 1st defendant with some members of the Bashua Chieftaincy family including the 2nd defendant accompanied the plaintiff to the site at 13 Obiwunmi Street, Shomolu otherwise known as Plot 13 in Elias Approved Layout and put him into possession.
11. The defendant family agreed to execute a deed of lease in respect of the property in question whenever same is prepared by the plaintiff and submitted for the defendant family for signature.

12.The defendant family also agreed to allow the plaintiff to exercise an option to purchase the freehold right in the land in dispute on payment of a sum of 500 pounds (now N1,000) but would, as usual, issue receipt for 230 pounds (now N460).

13. The plaintiff immediately went into possession of the said land and caused a survey plan No. GFO/571B of the said land to be prepared by licensed surveyor G.F.O. Okusanya and duly countersigned by the Surveyor-General, Western State of Nigeria on the 22nd day of December, 1970.
14. The plaintiff put up a wall fence on the land in 1970 and erected two stores thereon which were hired out on monthly rental basis to tenants, Mr. Olatunji Otubusin the manager of OWOTABUA POOL HOUSE, Messrs, Nigerian Assessors and Investigators Company Limited of 58, Ojuelegba Road, Surulere who were on the land as tenants of the plaintiff.
15. The plaintiff later caused a building plan No. M/BB/A 1406 relating to the landed property in question to be submitted on the 18th day of October 1972 to the Ikeja Town Planning Authority (now Lagos State Development Property Corporation) for approval.
16. The plaintiff avers that he offered a sum of N1,000 to the defendant family for freehold purchase of the land in dispute but the defendant family refused.
17. The plaintiff sent to the defendant family by registered letter the annual rent of N10 due in respect of the lease for 1971 but the defendant family returned same.
18. The plaintiff avers that in November 1972, he took out a writ of summons in suit No.LD/1321/72, against the 1st, 2nd, 3rd, 4th, 5th and 6th defendants for specific performance to execute a deed of lease in respect of the property known as No. 13, Obiwunmi Street, Bashua Village, Shomolu.

19.The writ of summons in the said Suit No. LD/1321/72 was struck out on the 11th of December, 1972 for failure of the plaintiff to get to the court in time due to transport go-slow.

20. The plaintiff immediately filed another writ of summons in Suit No.LD/1469/72 against the said Bashua Chieftaincy family for specific performance to execute a deed of lease in respect of the landed property at No.13, Obiwunmi Street, Lagos.
21. Pleadings have been completed in the said Suit No.LD/1469/72 and the matter is ripe for hearing.
22. The plaintiff avers that the 7th defendant has been his friend for the past four years and knows the plaintiff to be the owner and landlord of the house and landed property at 13, Obiwunmi Street, Shomolu which is the property in dispute.
23. The defendant family sometime in or about the 16th day of March 1973 purported to execute in favour of the 7th defendant a deed of conveyance registered as No. 69 at page 69 in Volume 1433 of the Lands Registry in the office at Lagos relating to the property in question.
24. The plaintiff intended to commence building on the land in dispute sometime in July, 1973.
25. The plaintiff avers that when he pressed for his building plan to be approved he received a letter from the Ikeja Town Planning Authority to the effect that he should first of all demolish his existing structures and shops on the land.
26. The plaintiff avers that his shop on the land in dispute was demolished by the Ikeja Town Planning Authority on the 10th of July, 1973 leaving the board-off for the purpose of keeping his building materials therein.
27. Late in the evening of the 10th of July, 1973 the 1st and the 7th defendants and some other people brought thugs to the land in dispute and demolished the board-off structure for the building materials, removed 100 bags of cement and other building materials from the store, pulled down the wall fence and chased the plaintiff away with cutlass.
28. The matter was on the 11th of July, 1973 immediately reported to the police who are still investigating the matter.
29. The plaintiff at the trial will contend amongst other things that the 1st, 2nd, 3rd, 4th, 5th and 6th defendants executed the purported deed of conveyance in favour of the 7th defendant dated 16th March, 1973 and registered as No. 69 at page 69 in Volume 1433 at the Lands Registry, Lagos fraudulently and with a view to defeat the end of justice in that:

(1) The Bashua Chieftaincy family know that they were under an obligation to execute a deed of lease or conveyance in his favour and legal action has been taken against them accordingly.

(2) The 7th defendant was well aware of the plaintiff’s interest in the land in question.

Wherefore the plaintiff claims as per his writ of summons.

Dated at Lagos this 29th day of January 1974.”

1st to 6th defendants, who were members of the Bashua family, filed one statement of defence while the 7th defendant, who was the grantee of the Bashua family i.e. the grantee of 1st to 6th defendants, filed a different statement of defence. The statement of defence of 1st to 6th defendants reads:

“Statement of Defence of 1st – 6th Defendants

SAVE and except as is hereinafter expressly admitted, the defendants deny each and every allegation of facts contained in the plaintiffs (sic) statement of claim as if each were set down and specifically denied.

1. That 1st to 6th defendants admits (sic) paragraphs 1 and 4 but denies (sic) paragraphs 2, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 21, 24, 25, 26, 27, 28 and 29 of the plaintiff’s (sic) statement of claim, and put him to the strict prove (sic) of the various allegations of facts contained 5 therein.
2. The 1st to 6th defendants at no time agreed to lease any land to the plaintiff, nor was there any agreement of terms of any leasehold reached with the plaintiff.
3. The defendants avers that they sold and conveyed a piece of land to the 7th defendant who was put unto (sic) possession and have (sic) since remained thereon. The land was vacant at the time and was in possession of the 1st to 6th defendants (sic) family until it was sold.
4. The 1st to 6th defendants aver that, there was no fraud involved in the execution of the said deed of conveyance to the 7th defendant.
5. The defendant will contend at the trial that the plaintiffs (sic) claim is misconceived, an abuse of the process of court and should be dismissed.”

The 7th defendant had not much to say in his statement of defence save that the Bashua family made a grant of the land in dispute to him. This was what he wrote:

“7th Defendant’s Statement of Defence

Save and except as are hereinafter expressly admitted the 7th defendant denies each and every allegation of facts contained in the plaintiff’s statement of claim as if the same were set out seriatim and specifically denied.

1. This defendant denies each and every allegation of paragraphs 5, 6, 7, 8,9,10,11,12,13,14,15,16,17,18,19,20,21,22,24,25, 26, 27, 28, 29 of the statement of claim and puts the plaintiff to the strict proof thereof.
2. This defendant admits each and every allegation of paragraphs 1, 2, 3, 4, 23 of the statement of claim.
3. This defendant avers that under and by virtue of the deed of conveyance dated 16.3.73 and registered as number 69 at page 69 in Volume 1433 of the Register of Deeds kept at the Lands Registry in the office at Lagos the 1st – 6th defendants sold to him the landed property situate at No. 13, Obiwunmi Street, Bashua Village, Shomolu, Lagos.

WHEPEUPON this defendant avers that the plaintiff’s claim as per the writ of summons is utterly misconceived in law and confused on the facts and ought to be dismissed with substantial costs.

Dated at this 16th day of February, 1974.

IKEJA”

The action came up for trial before J. Oladipo Williams, J., in the Ikeja High Court. The respondent gave evidence, called three witnesses and closed his case. Then the defendant by their counsel, Dawodu, made the following announcement to court

“DAWODU: Having gone through the evidence for the plaintiff, we do not intend to call any evidence for the defence.”

The case was then adjourned for address to 12th April 1977 but before that date counsel for the respondent filed a motion seeking leave of court to recall the respondent for him to tender

“a deed of conveyance which was inadvertently omitted during his evidence or alternatively to allow the same to be tendered through the Bar ”

The motion was heard of 12th April 1977 and counsel for the appellant objected to the application. The learned trial judge, in his ruling, refused the application holding, inter alia, that

“I have considered this matter very carefully. The law is that the court has a discretion in cases of this nature.

When particularly it is necessary that evidence previous (sic) given should be clarified. It is not however so in this case. What is being sought to be received in evidence has not been before me and I do not think it needs any clarification.nThe case for both sides have (sic) closed and the circumstances here are on all forms (sic) with those in Ojeigbe and another v. Ubani and another (1961) 1 All Nigerian report 277 where the Supreme Court ruled that a document being sought to be tendered was rightly rejected.

I am bound by this decision. I am of the view that the cases of Tabaa and Odogha cited by counsel for the plaintiff are not relevant here. This application should be refused and is accordingly refused.”

Mr. Bashua, counsel for the 1st to 6th defendant appellants strenously argued before us that the learned trial judge rightly refused the application to recall the plaintiff for him to tender the deed of conveyance and since the said deed of conveyance was not before the court, that was the end of the plaintiff’s claim seeking to set aside the deed of conveyance, since, he argued, the learned trial judge could not set aside a document not before him. I shall deal with the argument later in this judgment.

Suffice it to say, for now, that one is reminded of the case of Dr. Robert Louis Stevenson’s “Dr. Jekyll and Mr. Hyde”. There was the learned trial judge exercising his discretion and refusing that the plaintiff should exhibit his deed of conveyance; and there was the same trial judge turning round to blame the plaintiff for his failure to produce the said deed of conveyance – a rather untenable situation.

There was no doubt that the deed of conveyance which the plaintiff/respondent wanted to tender by reason of which the application for plaintiff’s recall was made, was the very deed of conveyance he sought the declaration of the court to set aside. The learned trial judge, in the course of his judgment, stated this clearly when he said:

“The motion was for leave to recall the plaintiff to tender ‘a certified true copy of a deed of conveyance which was inadvertently omitted’ during the plaintiff’s evidence or alternatively for leave to allow same to be tendered from the Bar. In the affidavit in support of this motion the plaintiff deposed to the fact that the conveyance which he omitted to tender during his evidence was the conveyance in respect of which he was seeking a declaration to set aside.”

After hearing address of counsel, the trial judge delivered a considered judgment and dismissed the claim. He argued that the matter in issue was whether the 1st to 6th defendants who were the owners of the land in dispute did agree to sell the land to the plaintiff and if so, whether the plaintiff was entitled to a declaration to set aside the conveyance executed in favour of the 7th defendant. These matters, he said, were those which must be proved to the satisfaction of the court.

He contended that the receipt, exhibit P1, which the plaintiff tendered in order to prove that he had paid the 1st to 6th defendants the rent for the land at No. 13 Obiwunmi Street, Bashua Village, Shomolu, spoke of a piece of land measuring 50ft. x 100ft. whereas, the plan which he made after surveying the land, talked of a piece of land measuring 60ft. x 100ft. He said it was the duty of the plaintiff to explain why the land in the plan, exhibit P2, was larger than the land in the receipt, exhibit P1, if in fact exhibit P1 was ever given to him. This he did not do. The plaintiff, he said, being an agent of the 1st to 6th defendants should know about the land at Obiwunmi Street very well and should be able to explain any discrepancies.

Another point which he held against the plaintiff was that the piece of land the plaintiff was seeking a declaration for was marked ‘A’ in the plan, exhibit P2. The land next to it was therein marked ‘B’ and was shown to belong to one Madam Olanrewaju whose name was cancelled in the descriptive part of the plan. The plaintiff was asked whether he knew the lady and he answered in the negative. He even said he did not know that her name appeared on the plan. The receipt exhibit P1, the learned trial judge said, did not mention No. 13 Obiwunmi Street. He asked the question how the plaintiff, having stated that at the time when exhibit P1 was given to him the 1st to 6th defendants had no layout plan of the area, could have got the No. “13” which was the number he was claiming to be the number of plot sold to him This he said the plaintiff could not explain. The learned trial judge then came to the conclusion that he could not arrive at any definite conclusion that there was an agreement between the plaintiff and the 1st to 6th defendants about the lease of any land at Obiwunmi Street to the plaintiff.

Turning to the issue of fraud which the plaintiff alleged against the 1st to 6th defendants, the learned trial judge held that the plaintiff must prove the fraud strictly. The plaintiff having failed to established convincingly that there was any agreement between him and the 1st to 6th defendants, he must resolve the issue of fraud against the plaintiff and held that he had not proved fraud.

He further held that the non-production of the deed of conveyance by the plaintiff in evidence was fatal to his case. How could he set aside a conveyance, he asked, which was not produced in court and the terms and conditions of which were not before the court He held it would be most unreasonable for the court to speculate on the contents of the conveyance in order to make the order which the plaintiff sought.

Finally, the learned trial judge commented that justice demanded that before any declaration could be made in favour of the plaintiff the plaintiff must lay his case fully before the court. He said he had found that the plaintiff had not told the court all that happened between him and the 1st to 6th defendants. “His evidence”, he held, “was full of half-truths and falsehoods”. He was not convinced that the plaintiff had any arrangement or agreement with the 1st to 6th defendants, in respect of the land at 13 Obiwunmi Street. Accordingly, he held that he was bound, in the premises, to dismiss the plaintiff’s case.

Two aspects of this case need to be emphasized and to be constantly borne in mind in determining this appeal, namely:

(i) that paragraph 23 of the statement of claim was admitted categorically by the 7th defendant in paragraph 2 of his statement of defence and that the 1st to 6th defendants did not deny specifically, and therefore were deemed to have admitted, that paragraph of the statement of claim; and

(ii) that the defendants did not call any evidence, and closed their case after the plaintiff had closed his case, thus resting their case on the evidence called by the plaintiff.

To deal with (1) above, the said paragraph 23 averred that that the defendant Bashua family, about 16th March 1973, “purported” to execute a deed of conveyance registered as No. 69 at page 69 in Volume 1433 of the Lands Registry in Lagos relating to the property in dispute, to the 7th defendant.

The 1st to 6th defendants, in paragraph 1 of their statement of defence, denied paragraphs 2 to 7, 9 to 17 and 21 to 29 of the statement of claim. They did not deny paragraph 23. In paragraph 3 of their statement of defence they simply stated that:

“they sold and conveyed a piece of land to the 7th defendant who was put into possession and has since remained thereon.”

When the attention of Mr. Bashua, counsel for the defendants, was drawn to this, his answer was that it was the duty of the plaintiff to prove his case by producing documents necessary for the establishment of his case, and this he could not do by relying on the weakness of the defence case.

But a plaintiff need not proceed to prove an admitted fact. And a fact is deemed to be admitted if it is neither specifically denied nor denied by implication, having regard to other facts averred in the pleadings. A plaintiff’s averments of facts must be met by the defendant frontally and categorically. The rules of pleadings do not allow a defendant to be hedgy or evasive in his answers to the facts averred by the plaintiff. Once he refuses to meet the facts directly – either by admitting or by denying them, except, of course, where he is not in a position to admit or deny by reason of the matter, for example, being peculiarly within the knowledge of the plaintiff – he is taken to have admitted them.

The matter was put clearly by this Court in Messrs. Lewis and Peat (N.R.I.) Ltd. v. A.E. Akhimien (1976) 7 S.C. 157; (1976) 1 All N.L.R. (Pt.1) 460 where Idigbe, J.S.C., in giving reasons for the judgment of the Court, stated the principle at 465 to p.466 thus:

“When as a result of exchange of pleadings by parties to a case a material fact is affirmed by one of the parties but denied by the other, the question thus raised between the parties is an ‘issue of fact’. We must observe, however, that in order to raise an issue of fact in these circumstances there must be a proper traverse; and a traverse must be made either by a denial or non-admission either expressly or by necessary implication. So that if a defendant refuses to admit a particular allegation in the statement of claim, he must state so specifically; and he does not do this satisfactorily by pleading thus: ‘defendant is not in a position to admit or deny (the particular allegation in the statement of claim) and will at the trial put the plaintiff to proof’. As was held in Harris v. Gamble (1878) 7 Ch. D. 877 a plea that ‘defendant puts plaintiff to proof’ amounts to in- 45 sufficient denial; equally a plea that the ‘defendant does not admit correctness’ (of a particular allegation in the statement of claim) is also an insufficient denial – see Rutter v. Tregent (1879) 12 Ch. D. 758.”

In the instant case there was no need, having regard to the state of the pleadings, for the respondent/plaintiff to apply to recall the plaintiff in order to tender the deed of conveyance registered as 69/69/1433 which had been admitted specifically by the 7th defendant and deemed to be admitted by the 1st to 6th defendants in the pleadings.

With all due respect to Mr. Bashua, counsel for the appellants, he had conceived the matter erroneously when he kept on harping, in his submission before us, that the learned trial judge could not set aside a deed of conveyance which was not before him. He argued as if a setting aside of a deed of conveyance would entail a physical tearing up, or destruction, of the deed before it could be said to have been set aside. The particulars of the deed were before the court and were admitted. All that would have happened would have been for a judgment of a court setting aside the deed (in the instant case, deed registered as No. 69 at page 69 in Volume 1433 of the Lagos Lands Registry) to be affixed to the deed in the Land Registry by the Registrar, or for the record of the court’s judgment to be made on the deed and the cancellation would then be effective. Mr. Bashua must have felt that he had reached his El Dorado when the plaintiff did not produce his deed of conveyance, and this must have been responsible for his taking the unwise step not to call any evidence at the close of the plaintiff’s case.

Clearly, that was a mistaken failure to appreciate the state of the pleadings in this case.

It must be pointed out that the matters in issue were not the terms of the deed of conveyance in which case it would be necessary that the document should be produced in order that the court might determine the precise contents of the document. What the plaintiff pleaded was that the 1st to 6th defendants purported to convey the estate which was already vested in him to the 7th defendant. The 7th defendant had admitted that it was that estate which was conveyed to him by the deed of conveyance registered as 69/69/1433 of the Lagos Land Registry.

Having so stated, I am bound to express my bewilderment that counsel for the respondent/plaintiff could, by any stretch of imagination, have forgotten or neglected to tender, by the plaintiff, while he was testifying, the very document which he was asking the court to set aside. It was for that document that he went to court in the first place and for him to have neglected to produce the document the very moment the plaintiff/respondent commenced his evidence is entirely baffling. Still, it is neither here nor there.

I now deal with (ii) above, namely, the failure of the defence to adduce evidence being one of the factors in this case which I said should be constantly borne in mind. It is an elementary principle in civil proceedings that civil cases are decided on a balance of probabilities based on preponderance of evidence.

Where the plaintiff has given evidence and called his witnesses as in this case (the plaintiff called three witnesses) a trial judge would certainly be left with little choice on the issue of the acceptance of the facts adduced in evidence by the plaintiff. Except in a case where the defence has, by vigorous and pin-pointed cross-examination of the plaintiff and his witnesses, mainfestly demolished the case of the plaintiff, a defendant obviously takes enormous risk in proceeding on a course of not adducing evidence to counterbalance the evidence of the plaintiff. Otherwise, on what material is the trial judge to balance his probabilities

This Court restated the proper approach to be followed, by a court, in employing the imaginary scale of justice in these words in Mogaji & Ors. v. Odofin & Ors. (1978)4 S.C. 91 at 93- 94:

“When an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before him. In other words, the totality of the evidence should be considered in order to determine which has weight and which has no weight at all. Therefore, in deciding whether a certain set of facts given in evidence by one party in a civil case before a court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial judge, after a summary of all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it; if that law supports it bearing in mind the cause of action, he will then find for the plaintiff. If not, the plaintiff’s claim will be dismissed.”

See also: Chief M.A. Okupe v. B.O. Ifemembi (1974) 1 All N.L.R. 375

The Federal Court of Appeal (now the Court of Appeal) had, in the instant appeal, allowed the appeal of the plaintiff and set aside the judgment of Williams J. Being dissatisfied with the judgment of the Court of Appeal, the Bashua family has now appealed to this Court praying for the Court’s intervention to set aside the judgment of the Court of Appeal.

The three grounds of appeal filed by the 1st to 6th defendants, without the lengthy particulars given, were as follows:

“1. The Federal Court of Appeal erred in law in reversing the decision of the learned trial judge when the Lord Justices held that the facts set out clearly establish fraud in equity.

(a) X X X X X X X X X X X X X X X X X X X X

(b)X X X X X X X X X X X X X X X X X X X X

2. The learned Justices of Appeal misdirected itself (sic) in law and on the facts in its (sic) application of the decision in Chief M.A. Okupe VS. B.O. Ifemembi to the judgment of the High Court and thereby came to a wrong decision in setting aside the said judgment in favour of the defendants. X X X X X X X X X X X X X X X X X X X X X
3. The learned Justices of Appeal misdirected itself (sic) in law when it (sic) held that the trial judge should have granted the appellants application and admitted the conveyance which he considered vital, in evidence in the interest of justice.”

The 7th defendant filed separate notice and grounds of appeal.

Again, some of the particulars, they read are as follows:

“(a) The learned Federal Court of Appeal presided over by the Honourable Mr. Justice Nnaemeka-Agu erred in law by setting aside the deed of conveyance dated 16/3/73 and registered as Number 69 at page 69 in volume 1433 of the Register of Deeds kept at the Lands Registry in the office at Lagos and made between the 1st-6th defendants/respondents and the 7th defendant/appellant (hereinafter referred to as ‘the said conveyance’).

XXXXXXXXXXXXXXXXXXXXXXXXXXX

(b) The learned Federal Court of Appeal presided over by the Mr. Justice Nnaemeka-Agu further erred in law by setting aside the said deed of conveyance.

XXXXXXXXXXXXXXXXXXXXXXXXXXX

(c) The lower court erred in law in holding that there was an agreement for execution

of a formal deed of lease and also an option to purchase the freehold.

X X X X X X X X X X X X X X X X X X X X X X X X X X X X

(d) The lower court erred in law in holding that fraud was established by the plaintiff/respondent.”

All parties to this appeal filed their briefs of argument.

In a carefully reasoned judgment the Court of Appeal (per Nnaemeka-Agu, J.C.A.) came to the conclusion, in my view, quite justifiably,

(i) that the learned trial judge should have granted plaintiff’s counsel’s application to recall the plaintiff in order to tender the deed of conveyance EXHIBIT G and should have admitted the exhibit in evidence;

(ii) that the 7th defendant knew of the interest of the plaintiff in the property in dispute before buying from Bashua family and that Bashua family knew that the plaintiff had sued them for specific performance before selling to the 7th defendant;

(iii) that the conduct of both the Bashua family in selling to the 7th defendant, and the 7th defendant in buying with full knowledge of the plaintiff’s interest, were designed, as claimed by the plaintiff, to defeat the cause of justice; and

(iv) that the facts which the plaintiff established in the case were sufficient proof of fraud in equity.

I have already stated that the plaintiff needed not have applied to return to the witness box in order to tender the deed of conveyance by reason of the admission made in the pleadings. The learned trial judge cited Ojeigbe & Another v. Ubani & Another (1961) 1 All N.L.R. 277 – a decision of this Court – as justifying his refusal to grant the application. Assuming, however, that it was necessary for the plaintiff to be recalled to put the deed in evidence, the learned trial judge should have exercised his discretion in favour of the plaintiff because the deed had been admitted in the pleadings, and therefore, no surprise would have been sprung on the defendants.

The Ojeigbe Case (supra) was entirely inapplicable in this case. It was an election petition in which both parties had closed their case when petitioner’s counsel sought to recall a witness to put a document in evidence and the other side objected. The matter in controversy was the fixing of the election on a Saturday – a day on which Seventh Day Adventists would not, on religious grounds, exercise their vote. The successful candidate won the election by a margin of more than 20,000 votes. The total number of the Adventists was 7,000. And so, the Federal Supreme Court held that even if all the 7,000 Adventists were to vote for the petitioner, he would still lose and no material difference would have been made to the outcome, even if the application to recall the witness had been granted.

The uncontradicted evidence of the plaintiff/respondent was that the 7th defendant was his friend who knew very well the plot in dispute and that he got it from Bashua family. Indeed, he said, so well did the 7th defendant know of their relationship that the 7th defendant applied to the Bashua family for land through the plaintiff. The evidence of the plaintiff on the point was this:

“I introduced 7th defendant to the 1st to 6th defendants. I took him to 1st-6th defendants to buy land from them.

I made them sell Nos. 10 and 12 Obiwunmi Street to 7th defendant. He bought these two plots. I bought Nos. 13 and 14 Obiwunmi Street. I now say that No. 14 was bought by somebody else and that person nearby bought through me. 7th defendant known (sic) that I was on the land at No. 13 Obiwunmi Street. 50 I took 7th defendant to the 1st-6th defendants in 1968.”

On the issue of specific performance the plaintiff testified that he built three shops on the land after which he requested 1st to 6th defendants to execute a deed of lease to him. On their failure to do so, he sued them for specific performance. Said he:

“When they refused to give me a deed of lease in respect of the land in dispute, I sued them to court in the Lagos High Court. This is the copy of the writ of summons in that case, tendered, no objection, by Mr. Dawodu and Mr. Okupe, admitted and marked exhibit P4”.

From the evidence adduced, which went uncontradicted by the defence, the finding which must naturally flow from it would have been that both the Bashua family and the 7th defendant, well knowing of the interest of the plaintiff in the land in dispute, entered into their deed of conveyance exhibit G, purporting to transfer the land to the 7th defendant, in defeat of the vested interest of the plaintiff.

The law has been well and long settled, that where a person pays for land and obtains receipt for the payment followed by his going into possession and remaining in possession, an equitable interest is created for him in the land, such as would defeat the title of a subsequent legal estate purchaser with knowledge of the equitable estate in the land. That was affirmed to be the state of the law in Orasanmi v. Idowu (1959) 4 F.S.C. 40, it being emphasized there that the plaintiff not only must go into possession but must remain in undisturbed possession until the defendant comes along to interfere with him. Such a situation – sale of land; a receipt for the purchase payment and an entry into and remaining in possession – creates an agreement for sale. It was said in Ogunbambi v. Abowab (1951) 13 W.A.C.A. 222 at 224 that

“such a document is an agreement for sale coupled with a receipt for purchase money and a covenant to execute a conveyance on demand.”

In the same case, prior knowledge by the defendant of the interest of the plaintiff in the land would affect him even though he might not have had actual formal notice. Verity, Ag. P., at pages 224 to 225 stated:

“In the present case the appellant was plainly aware that the respondent’s vendor had some interest in the land, for he sought to purchase it. Upon his offer being refused he sought and obtained a conveyance from another party, whom he knew to be out of possession without making any enquiry or investigation which would have disclosed to him the nature of the interest which he had himself believed to be vested in the party from whom he had sought to purchase.

It is not enough for the appellant to show that he had no actual notice.”

All these were in affirmation of the equitable principle enunciated in Walsh v. Lonsdale (1882) 21 Ch. D. 9 that “equity looks on that as done which ought to be done” and that “he who comes to equity must do equity”. Equity looks at the substance of justice than at technicalities. Where a person has given his word to another upon which that other has taken some material and substantial steps, equity will insist that the man should keep his word. This was the spirit behind the decision of the Federal Supreme Court in Ojikutu v. Demuren (1957) 2 F.S.C. 72 – per Abbot, F.J. and for the statement often colloquially made

‘that an agreement for a lease is as good as a lease’.

Learned trial judge made an issue of the fact that the receipt, exhibit P1 had stated the land to be 13 Obiwunmi Street measuring 50ft. x 100ft. whereas the land had not been laid out yet. He then asked how “13” Obiwunmi Street could have been given by the Bashua family when the layout had not been done. It is to be noted that the receipt is a pro-forma receipt with 50ft. x 100ft. already printed.

I now deal with the aspect of the claim which stated that the deed of conveyance

“was made, executed and obtained fraudulently and/or in attempt to defeat the end of justice.”

In conveying to a second vendee a piece of land which he had already sold to a first vendee, the vendor of landed property must be deemed to have made a representation to the second vendee that the land was unincumbered. Such a representation would, of course, be false. Where, however, the vendor and the second vendee well knew that the land had earlier been sold to the first vendee and with that knowledge entered into the fresh conveyance to the second vendee, both the vendor and the second vendee must be deemed to have conspired to cheat the first vendee of his holding. In the first case, the vendor is guilty of fraudulent misrepresentation; in the second, both the vendor and the second vendee are guilty of fraud – certainly in equity – on the first vendee for which the first vendee will, in equity, be entitled to a rescission or to use the appropriate words of the Claim, “to set aside” the conveyance.

The general principle is thus stated that where an estate is encumbered by a prior equitable interest, a subsequent purchaser for value of the legal estate with knowledge of the incumbrance will have his legal estate postponed to the equitable interest, and in the case of fraud, the transaction by which the purchaser bought the legal estate will be cancelled, in equity. This is in accord with the decision of the West African Court of Appeal in Rufus Adekunle Wright v. the Ahmadiyya Movement-In-Islam (W.A.C.A. No. 2886 of 7th May 1949) referred to by the Court of Appeal and Aboyade Cole v. Folami (1956) 1 F.S.C. 66 decided by the Federal Supreme Court (Jibowu, Ag. F.C.J.; De Lestang, F.J., and Hubbard, Ag. F.J.) on 18th October 1956.

It has its origins in the rules of law and equity by which moral obliquity and failure to maintain certain set moral standards were, respectively, decreed against (see: Nocton v. Lord Ashburton (1914) A.C. 932 – for the speech of Viscount Haldane).

For the foregoing reasons this appeal must be dismissed, and is hereby dismissed. The respondent is entitled to his costs which I assess at N300.00.

IRIKEFE, J.S.C.: I had read in advance the judgment just read by my learned brother, Aniagolu, J.S.C. and I agree with the reasoning and conclusions therein both on matters of law and fact. I also would dismiss the appeals herein as lacking in merit and adopt all the orders contained in the lead judgment of my learned brother, Aniagolu, J.S.C. aforesaid inclusive of the order as to costs.

OBASEKI, J.S.C.: I have had the advantage of reading in advance the draft of the judgment just delivered by my learned brother, Aniagolu, J.S.C. I agree with him.

For the reasons so ably set out by him, I too will dismiss the appeal and I hereby dismiss it with N300.00 costs to the respondent.

The decision of the Court of Appeal granting the claims of the plaintiffs/respondents is hereby affirmed.

ESO, J.S.C.: I have had the advantage of a preview of the draft of the judgment which has just been read by my learned brother Aniagolu, J.S.C. and I am in full agreement with his reasoning and conclusion that the appeal should be dismissed.

Having regard to the state of pleadings whereby the grantee of the land the 7th defendant specifically admitted para. 23 of the statement of claim and the 1st to 6th defendants did not deny specifically this paragraph which stated the fact of a purported execution of the deed of conveyance specifically stated to be registered as No. 69 at page 69 in Volume 1433 of the Lands Registry in Lagos and which indeed relates to the land in dispute, I am of the firm view that the plaintiff herein did not need to prove this admitted fact; see Lewis and Peat (N.R.I.) Ltd. v. Akhimien (1976) 7 S.C. 157 as per Idigbe J.S.C.

The defendants called no evidence and on the balance of probabilities the plaintiff was bound to succeed.

I will dismiss the appeal and abide by all the orders contained in the judgment of my learned brother Aniagolu J.S.C.

NNAMANI, J.S.C.: I had the advantage of reading in draft the judgment just delivered by my learned brother Aniagolu, J.S.C. I agree entirely with the reasoning and conclusions therein.

Having regard to the pleadings it is also my view that it was unnecessary to recall the respondent at the trial in order to tender the purported deed of conveyance executed by 1st – 6th appellants in favour of 7th appellant. Also from the pleadings and the evidence of the respondent at the trial (the latter being uncontroverted) it is also clear to me that it was the same land which 1 – 6th appellants had in 1970 agreed to lease to the respondent that they purported to convey to the 7th appellant on 16th March 1973. Both groups knew of the respondent’s interest in that land. The identity of the land in dispute was never really in doubt notwithstanding the disputations around exhibit P1 and the respondent’s plan – the respondent was put in possession of it by 1st and 2nd appellants in 1970; the respondent erected 3 stores thereon which were rented out on monthly rents; the 1st and 7th appellants took thugs on 10/7/73 to this land and demolished the stores.

I would also dismiss the appeal and endorse all the orders in the judgment of my learned brother, Aniagolu, J.S.C.

Appeal dismissed.

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Other Citation: (1984) LCN/2214(SC)